The complainant had requested access from her insurance company to a file relating to a claim she had made in respect of a stolen vehicle. The company refused access on the basis that documents on the file were protected by legal professional privilege and that section 29(1)(b) of the Privacy Act provided good reason to withhold the information.

Legal Professional Privilege

Section 29(1)(f) of the Act provides that an agency may refuse a request if -

"the disclosure of the information would breach legal professional privilege;".

Having carefully considered the information at issue and the parameters of this privilege I formed the view that section 29(1)(f) did not apply in the circumstances of this case. It appeared that the company were claiming what is commonly called "litigation privilege". I had regard to the comments of Mr Justice Cooke in Guardian Royal Exchange Assurance of New Zealand Limited v Stuart (1985) 1NZLR 396 who stated the New Zealand rule in respect of litigation privilege to be:

"...when litigation is in progress or reasonably apprehended a report or other document obtained by a party or his legal adviser should be privileged from inspection or production in evidence, if the dominant purpose of its preparation is to enable the legal adviser to conduct or advise regarding the litigation." (my emphasis)

In this case the two most pertinent aspects of the rule were that litigation must be "in progress or reasonably apprehended" at the time the relevant documents were obtained and the "dominant purpose" of the preparation must have been to enable a legal adviser to conduct or advise regarding the litigation. Having considered the information at issue in this case, it appears that the dominant purpose for the preparation of most of the documents on the file was to decide whether or not to accept the complainant's claim. I noted that if a decision was made to decline the claim and this decision became the subject of litigation then, no doubt, many of the documents would have been provided to the company's legal advisers to allow them to conduct or advise in respect of that litigation. However, it did not appear from the file that at the time the information was prepared litigation was reasonably apprehended; while facilitating the ability of the company's legal advisers to conduct litigation may have been an ancillary purpose for the preparation of the information, I did not consider it was the dominant purpose.

Section 29(1)(b)

The second ground relied on by the company in withholding the information was section 29(1)(b). This section provides an agency with a reason to refuse to disclose information if "(b) the disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise - >>(i) which was made to the person who supplied the information; and (ii) which was to the effect that the information or the identity of the person who supplied it or both would be held in confidence;".<< "Evaluative material" is defined in section 29(3) as meaning: "Evaluative or opinion material compiled solely - "(c) for the purpose of deciding whether to insure any individual or property or to continue or review the insurance of any individual or property." I did not consider that the information at issue was "evaluative material" as defined in section 29(3)(c). While the information retained about the complainant may have eventually been used to decide whether to continue or review insurance of her property, it seems clear that the information was not "compiled solely" for that purpose in terms of section 29(3). Rather, most of the information appeared to have been compiled for the purpose of deciding whether or not to accept the complainant's claim. Ancillary or subsequent purposes will not satisfy the sole purpose test required by the legislation for the defining of information as "evaluative material".

Other Reasons for Withholding

I noted that in investigating a decision to withhold information I was not bound to consider only those particular withholding provisions relied upon by an agency. The Privacy Act identifies interests which it seeks to protect by enabling an agency to withhold personal information (under Part IV of the Act) where its disclosure would have certain prejudicial results. Investigating an agency's decision to withhold information will, then, involve me in an assessment of the likely results of release of the information at issue. I therefore considered the complainant's file in the light of all the withholding provisions in Part IV of the Act.

The file indicated that information had originally been provided to the police by an informant about this matter. I referred to section 27(1)(c) of the Act which provides that an agency may refuse to disclose information if disclosure would be likely:

"(c) to prejudice the maintenance of the law including the prevention, investigation and detection of offences, and the right to a fair trial."

I found that this section applied on the basis that:

1. Informants would be less likely to supply information to the police in the future if they could not be assured that their identity would remain confidential; and 2. The police rely on receipt of such information in carrying out their maintenance of the law function; and 3. Therefore release of identifying details about the informant in this case would prejudice the maintenance of the law.

The file also contained information that that was clearly not information about the complainant and therefore the Privacy Act did not give her any entitlement to that information. I identified the information that was not about the complainant and advised that this information could be withheld.

In conclusion my opinion was that the Act provided the company, in this case, with good reason to make specified deletions to the file. There was no proper basis for the company's refusal to make the whole file available.

Refusal of access to information - Information privacy principles 6 - Section 27(1)(c) - Section 29(1)(b) and Section 29(3) - Section 29(1)(f) Privacy Act

Access to personal information - Insurance company - Refusal - Request for claim file - Litigation privilege - "Dominant purpose" of preparation of documents - Litigation "not reasonably apprehended" - Evaluative material - Information not "compiled solely" for evaluative purposes - Informant identity - Releasing informant identity would be likely to "prejudice the maintenance of the law" - Privacy Act 1993, ss 27(1)(c), 29(1)(b), 29(1)(f) and 29(3) - Information privacy principle 6